Judgment Chitra Venkataraman, J. 1. The assessee is on revision as against the order of the Sales Tax Appellate Tribunal rejecting the claim for exemption under Section 5(3) of the Central Sales Tax Act. The Tribunal also rejected the case of the assessee on the levy of purchase tax on the purchase of fly ash from Tuticorin Thermal Power Plant. The assessment year under consideration relates to 1991-92. The above Tax Case (Revision) was admitted on the following substantial questions of law:- "1. Whether the sale of cement by the petitioners to National Building Construction Corporation Limited (NBCCL) is a sale, which is deemed to be a sale in the course of export within the meaning of Section 5(3) of the Central Sales Tax Act, 1956 and thus not part of the taxable turnover of the petitioners for the purpose of the Tamil Nadu General Sales Tax Act, 1959? 2. Whether the Sales Tax Appellate Tribunal had erred in proceeding on the basis that for claiming the benefit of Section 5(3) of the Central Sales Tax Act, 1956, production of Form – H was necessary? 3. Whether the petitioners are liable to pay purchase tax on the purchase of Fly Ash from the TNEB (Tuticorin Thermal Power Plant)?" 2. The assessee herein is a manufacturer of cement. In the return filed for the assessment year 1991-92, the assessee claimed exemption under Section 5(3) of the Central Sales Tax Act in respect of turnover relating to sale of cement to National Building Construction Corporation Limited (NBCCL), which in turn exported it to Maldives for the purpose of execution of the works contract for construction 200 bed hospitals. The turnover of Rs.32,10,655/- was rejected by the Officer on the ground that even though factually there was sale of cement to NBCCL at Tuticorin Port, who, in turn, had exported the same to Maldives, in the absence of Form-H, the entire claim was to be disallowed. Aggrieved by this, the assessee went on appeal before the Appellate Deputy Commissioner, who confirmed the assessment on the ground that the assessee had not produced Form H in respect of the export of goods. He further pointed out that the assessee had not proved that the sale by the assessee to NBCC was occasioned by any contract of sale or an agreement of sale that NBCC had with the foreign buyer. He further pointed out that the assessee had not proved that the sale by the assessee to NBCC was occasioned by any contract of sale or an agreement of sale that NBCC had with the foreign buyer. Thus, in the absence of any such contract either by NBCC or by the assessee, the claim under Section 5(3) of the Central Sales Tax Act could not be granted. The first Appellate Authority pointed out that NBCC had a contract for construction of a building at Maldives, for which they had locally purchased cement from the assessee and then moved the cement to their work site in Maldives. Since NBCC were not entitled to issue Form H for such purchase of cement, the assessee were not eligible for claim of exemption on such sales of cement as sales in the course of export. Aggrieved by the same, the assessee went on further appeal before the Sales Tax Appellate Tribunal, which once again confirmed the order of the first Appellate Authority, thereby, confirmed the assessment order. The Tribunal pointed out that for claiming exemption under Section 5(3) of the Central Sales Tax Act, there must have been a pre-existing assessment or order to sell the specific goods and the penultimate sales must have taken place after such agreement that the exporter had with the foreign buyers. The Tribunal pointed out that the assessee had not produced Form H either before the Tribunal or before the first Appellate Authority or before the Assessing Authority. In the absence of filing of Form H, the assessee was not entitled to claim exemption. It further observed that sale of cement to NBCC was not by reason of any agreement that NBCC had with the foreign buyer. The purchase of cement was for the purpose of carrying out a works contract at Maldives. Since the cement purchased was utilised by NBCC and it was not supplied as such to any foreign buyer, the claim under Section 5(3) of the Act could not be granted. Aggrieved by the same, the assessee is on Revision before this Court. 3. Referring to the order dated 29.3.1989 from Ministry of External Affairs, BSM Division, learned counsel for the assessee submitted that NBCC was directed to undertake construction of 200 bed Indira Gandhi Memorial Hospital in Male. Aggrieved by the same, the assessee is on Revision before this Court. 3. Referring to the order dated 29.3.1989 from Ministry of External Affairs, BSM Division, learned counsel for the assessee submitted that NBCC was directed to undertake construction of 200 bed Indira Gandhi Memorial Hospital in Male. The contract was given pursuant to the agreement between the Government of India and Government of Maldives and that the terms and conditions of the construction as per the agreement were governed by the agreement signed by Ministry of External Affairs and NBCC on 14.3.89 for the execution of the work. The letter dated 29.3.1989 referred to the cost of the project. The letter also touched on the advance to be given to NBCC for purchase of materials. Looking at the terms and conditions therein, it is clear that NBCC was a sub contractor of the Government of India for the purpose of executing the works contract at Maldives. He pointed out that pursuant to such agreement between Government of India and Government of Maldives, NBCC placed an order with the assessee for the purchase of cement for execution of works contract at Maldives. Thus, the condition put forth under Section 5(3) stood satisfied. He further submitted that requirement as regards furnishing of Form H as a mandatory condition was included under Section 5(4) of the Act only with effect from 2004. Till such time, there was no such mandatory requirement and the claim under Section 5(3) of the Act could be proved by other materials too. Pointing out to Rule 12(10)(a) of the Central Sales Tax (Registration and Turnover) Rules, 1957, he submitted that filing of Form H not being a mandatory requirement, when the finding of the authorities below was that there had been sale by the assessee to NBCC, who had in fact exported the same for the purpose of execution of the works contract, the question of rejection of the claim on the ground that Form H had not been filed is not legally a justifiable view. 4. 4. Referring to the decision reported in [2008] 17 VST 1 -STATE OF A.P. v. LARSEN AND TOURBO LIMITED, learned counsel for the assessee submitted that even in the absence of privity of contract between NBCC and the contractee at Maldives, when the Revenue does not dispute the fact that the Government of India is the principal contractor and NBCC had executed the work as a sub contractor for supply of cement for the execution of works contract to NBCC, normal consequences on the penultimate sale leading to expand would apply to deemed sale too. Mere absence of a contract between NBCC, as a sub contractor and the Government at Maldives, cannot nullify the claim. Going by the decision referred to above, which in turn has referred the decision reported in [1989] 73 STC 370-BUILDERS ASSOCIATION OF INDIA v. UNION OF INDIA, the claim of the assessee merited to be accepted under the provisions of the Act. 5. Going by the definition of sale in the course of export and import given under the Central Sales Tax Act, and the explanation given under the definition of sale under the Tamil Nadu General Sales Tax Act and relevance of the provisions of the Central Sales Tax Act, learned counsel for the assessee submitted that being ascertained goods sold in the execution of the works contract, the claim of the assessee has to be sustained in law. 6. Countering the claim of the assessee and supporting the order of the Tribunal, learned Special Government Pleader submitted that the assessee had not placed any material to substantiate that NBCC had the contract with foreign buyer for the purpose of execution of works contract. Thus, when the requirement for grant of relief under Section 5(3) of the Central Sales Tax Act is not there, the assessee is not entitled for exemption under Section 5(3) of the Central Sales Tax Act. 7. Heard learned counsel for the assessee as well as learned Special Government Pleader (Taxes) and perused the materials available on record. 8. As far as the question No.3, on the levy of purchase tax on the purchase of Fly Ash from the TNEB (Tuticorin Thermal Power Plant) is concerned, learned counsel for the assessee fairly submitted that the said issue is covered by the decision of this Court rendered in T.C(R). 8. As far as the question No.3, on the levy of purchase tax on the purchase of Fly Ash from the TNEB (Tuticorin Thermal Power Plant) is concerned, learned counsel for the assessee fairly submitted that the said issue is covered by the decision of this Court rendered in T.C(R). No. 34 of 2011 dated 22.9.2011 in the assessee's own case, wherein this Court rejected the assessee's plea. Following the said decision, the third question of law is answered against the assessee. 9. As far as claim under Section 5(3) of the Central Sales Tax Act is concerned, as noted in the preceding paragraph, the Government of India had entered into an agreement with Government of Maldives for the purpose of constructing 200 bed hospitals in Male. The construction was given to NBCC under the "Aid to Maldives" programme of Ministry of External Affairs. A reading of the letter dated 29.3.1980 shows that the total expenditure on the project was not to exceed a sum of Rs.16,96,74,000/-. This was inclusive of foreign exchange component of Rs.5,75,00,000/- and the works was to be executed within a period of 36 months. Clause 9 of the order states that the cost of the project was based on the design, specification and other parameters given in the project report by NBCC to the Ministry of External Affairs. The order also contemplate payment of advances for the purpose of enabling NBCC to arrange for mobilisation for works contract. The order shows that contract for execution of 200 bed Indira Gandhi Memorial Hospital was outsourced to NBCC and in the execution of the said project, NBCC in turn placed orders with the assessee for the supply of cement. It is an admitted fact that the assessee sold cement to NBCC, who in turn, exported the same to Maldives from Tuticorin Port. The Revenue does not dispute the export of cement as well as sale of cement by the assessee to NBCC. The only ground on which the Revenue rejected the assessee's case was for non filing of Form H. As rightly pointed out by the learned counsel for the assessee, at the relevant assessment year under consideration viz., 1991-92, Section 5(4) of the Act was not there to hold that filing Form H as a mandatory requirement for claiming exemption under Section 5(3) of the Act. 10. 10. The law as it existed required that so long as the assessee was in a position to substantiate the penultimate sale claim, that it was for the purpose of complying with the agreement or order that the exporter had for or in relation to such export, the assessee would be entitled to claim exemption under Section 5(3) of the Act. Sub Section 4 of Section 5 was inserted by Section 90 of the Finance Act 18/2005 with effect from 13th May 2005, which provided for the mandatory filing of Form H to qualify the claim under Section 5(3) of the Act. A reading of the amended Rule 12(10)(a) of the Central Sales Tax (Registration and Turnover) Rules, 1957, shows the mandatory character of the furnishing of Form H by the dealer to the prescribed authority upto the time of assessment before the first Assessing Authority. Thus, as evident from the amendment inserting Sub Section 4 of Section 5 of the Central Sales Tax Act, with effect from 13th May 2005, we agree with the assessee's contention that the claim under Section 5(3) of the Act as it stood at the material time cannot be rejected solely on the ground that Form H was not filed. Thus, it is open to an assessee to prove the claim for Section 5(3) exemption through such materials also and not necessarily through Form H. As already pointed out, the Revenue does not dispute the fact as to the sale by the assessee to NBCC, who in turn had exported the same to Malidives. This admission takes us to second reasoning given by the Tribunal as well as by the first Appellate Authority to reject the claim of the assessee. 11. Thus, the ground on which the said claim was rejected was that NBCC did not have direct agreement with foreign buyer for export. Secondly even assuming that the contract was one with Maldives Government, the same was only for construction of a building and there was no specific contract or supply of the cement to the foreign customer. Consequently, the claim was to be rejected. The said reasoning of the Appellate Assistant Commissioner found favour with the Tribunal too. 12. Secondly even assuming that the contract was one with Maldives Government, the same was only for construction of a building and there was no specific contract or supply of the cement to the foreign customer. Consequently, the claim was to be rejected. The said reasoning of the Appellate Assistant Commissioner found favour with the Tribunal too. 12. As far as this contention is concerned, we agree with the submission made by learned counsel for the assessee, which is directly based on the decision reported in [2008] 17 VST 1 - STATE OF A.P. v. LARSEN AND TOURBO LIMITED. Referring to the decision reported in [1989] 73 STC 370-BUILDERS ASSOCIATION OF INDIA v. UNION OF INDIA, the Apex Court rejected the contention of the Revenue that where the main contractor and sub contract enter into an execution of works contract, even "if there is no privity of contract between the contractee and the sub contractor, that would not do away the principle of transfer of property by the sub contractor by accretion on the property belonging to the contractee. The question therein arose in the context of the principal contractor assigning parts of the construction work to sub contractors. On the question as to whether there were two deemed sales, one from the main contractor to the client and other from the sub contractor to the main contractor, on a writ petition, the High Court allowed the assessee's claim that the work executed by the sub contractor resulted only in a single transaction and not multiple transaction. Affirming the view of the High Court, on an appeal by the State, the Supreme Court rejected the State's contention. 13. Referring to the decision reported in [1989] 73 STC 370-BUILDERS ASSOCIATION OF INDIA v. UNION OF INDIA, the Apex Court considered the question as to whether the goods employed by the sub contractor would be in the form of single deemed sale or there would be multiple deemed sales as the number of sub contractors were there from the main contractor. The Apex court further pointed out that, "............. The Apex court further pointed out that, "............. By virtue of article 366(29A)(b) of the Constitution once the work is assigned by the contractor (L & T), the only transfer of property in goods is by the sub-contractor (s) who is a registered dealer in this case and who claims to have paid taxes under the Act on the goods involved in the execution of the works. Once the work is assigned by L & T to its sub-contractor(s), L & T ceases to execute the work contract in the sense contemplated by article 366(29A)(b) because property passes by accretion and there is no property in goods with the contractor which is capable of a retransfer, whether as goods or in some other form. " .................... "If one keeps in mind the above quoted observation of this court in the case of BUILDERS ASSOCIATION OF INDIA [1989] 73 STC 370, the position becomes clear, namely, that even if there is no privity of contract between the contractee and the sub contractor, that would not do away the principle of transfer of property by the subcontractor by employing the same on the property belonging to the contractee. This reasoning is based on the principle of accretion of property in goods. It is subject to the contract to the contrary. Thus, in our view, in such a case the work executed by a subcontractor, results in a single transaction and not multiple transactions. .................. In our view, if the argument of the Department is to be accepted it would result in plurality of deemed sales which would be contrary to article 366(29A)(b) of the Constitution as held by the impugned judgment of the High Court. Moreover, it may result in double taxation which may make the said 2005 Act vulnerable to challenge as violative as articles 14, 19(1)(g) and 265 of the Constitution of India as held by the High Court in its impugned jugment. " 14. The Revenue does not dispute the fact that the Government of India had the contract for construction of 200 bed hospital in Male. The sub contract was given to NBCC, in satisfaction of which, NBCC placed order with the assessee for supply of cement. It is no doubt true that if the assessee had the contract with Government of India, the question would not even arise as a complicated one. The sub contract was given to NBCC, in satisfaction of which, NBCC placed order with the assessee for supply of cement. It is no doubt true that if the assessee had the contract with Government of India, the question would not even arise as a complicated one. Yet, we do not think that the absence of the same and the grant of sub contract would stand in the way of granting the claim of the assessee. Treating the sub contract given to NBCC as the contract for execution by Government of India, we hold that the assessee is entitled to succeed in its claim for exemption under Section 5(3) of the Act as the penultimate sale leading to export. Since the claim relates to penultimate sale in relation to the deemed sale executed inter state India, learned standing counsel submitted that in any event the assessee is not entitled to claim the benefit under Section 5(3) of the Act. 15. In the decision reported in 88 STC 204 – GANNON DUNKERLEY & CO., v. STATE OF RAJASTHAN, the Apex Court referred to the decision of BUILDERS ASSOCIATION OF INDIA [1989] 73 STC 370, and held that the object of the new definition introduced in clause (29-A) of the Article 366 of the Constitution of India was only to enlarge the scope of definition on sale or purchase of goods, wherever it occurred in the Constitution, so that, it may include within its scope, deemed sales arising on account of works contract and various other deemed sale enumerated in clause (29-A) of the Article 366 of the Constitution. The Apex Court pointed out that the said amendment to the Constitution however would not take the transactions of deemed sale as outside the operation of the provisions of Sections 3, 4 and 5 of the Central Sales Tax. 16. The Supreme Court pointed out to the decision reported in BUILDERS ASSOCIATION OF INDIA [1989] 73 STC 370, and held that the tax leviable by virtue of sub clause (b) of clause (29-A) of Article 366 of the Constitution thus is subject to the same constitutional discipline to which any levy under Entry 54 of the State List is made. Thus, the Supreme Court held that, "............... Thus, the Supreme Court held that, "............... even in the absence of any amendment having been made in the Central Sales Tax Act (after the Forty Sixth Amendment) expressly including transfers of property in goods involved in the execution of a works contract, the provisions contained in Sections 3, 4 and 5 would be applicable to such transfers and the legislative power of the State to impose tax on such transfers under Entry 54 of the State List will have to be exercised keeping in view the provisions contained in Sections 3, 4 and 5 of the Central Sales Tax Act. For the same reasons Sections 14 and 15 of the Central Sales Act would also be applicable to the deemed sales resulting from transfer of property in goods involved in the execution of a works contract and the legislative power under Entry 54 in State List will have to be exercised subject to the restrictions and conditions prescribed in the said provisions in respect of goods that have been declared to be of special importance in inter State trade or commerce. " Thus, it held that principles of Sections 3, 4 and 5 of the Central Sales Tax Act would apply to deemed sale also resulting in transfer of property involved in the execution of works contract. 17. Applying the said principle of law to the facts herein, even though the execution of the works contract, is outside the country, nevertheless the contract that NBCC had on the execution of the works contract being a deemed sale, and going by the agreement that Government of India had with Government of Maldives, which had assigned the work to NBCC for execution and contract having been executed, we have no hesitation in accepting the plea of the assessee that it is entitled to claim exemption under Section 5(3) of the Central Sales Tax Act. We may point out herein that what is an applicable to an interstate works contract as the deemed sale has to be come for its application to an execution of an overseas works contract. 18. We may point out herein that what is an applicable to an interstate works contract as the deemed sale has to be come for its application to an execution of an overseas works contract. 18. In the light of the above, when the Revenue does not dispute the fact that based on the sub contract alone and subsequent thereto alone the assessee had sold cement to NBCC, who exported the same to Male for use in the execution of the works contract, we allow the Tax Case (Revision) in respect of question Nos. 1 and 2. In the circumstances, we hold that the assessee is entitled to Section 5(3) exemption on the penultimate sale of cement leading to its export. 19. It is seen from the order of the Tribunal that it had confirmed penalty to the extent of 50% on the disputed turnover relating to claim on penultimate sale as well as on the claim on purchase tax on the purchase of Fly Ash. 20. As already held in preceding paragraphs, the purchase tax on purchase of Fly Ash was held against the assessee by reason of this decision of this Court rendered in T.C (R). No. 34 of 2011 dated 22.9.2011 in the assessee's own case. The levy of penalty was however deleted by the Tribunal in the appeal relating to the assessment year 1986-87, which was also not subjected to any revision at the hands of the Revenue. When that being the case, we do not find that on the mere score of purchase tax being levied, the penalty should be sustained on the facts of the present case on hand, particularly with reference to the sustained portion of the assessment on purchase tax levy on fly ash. In the circumstances, maintaining uniformity in the treatment on the levy of penalty between the assessment year 1986-87 and the current year 1991-92, we do not find any justification to restore the levy of penalty on the above relating to purchase tax levy. 21. In the result, the above Tax Case (Revision) is partly allowed. No costs.